Regina v Pasirivo [2005] SBHC 101; HCSI-CRC 114 of 2004 (8 December 2005)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 114 of 2004

REGINA

-v-

CALISTO PASIRIVO

Gizo

Date of Trial: 3 December 2004
Date of Sentence: 8 December 2005

Simon Cooper, of DPP.
Emma Garo of Pub Sol for the accused

On Sentence for manslaughter.

Brown PJ: This man pleaded guilty to the manslaughter of Tony Puko, a 16 year old boy of Lema Village, Vella La Vella. In the afternoon of 28 May 2003, Tony Puko was with others playing football on the field when Kalisto Pasirivo came by. They were known to each other. The facts on which I am obliged to sentence were given.

Facts

On May 28 2003, Tony Puko aged 16 was playing with a group of friends at a ground area near the school at Leona Village, Vella La Vella. Amongst friends were Jackon Jove and Bobby Kwaita and also other boys there. In late afternoon, while near sports friend, Tony was approached by accused, some talk between them about bamboo. Accused became angry with Tony who was defenceless and done nothing to provoke attack. The two main witnesses were Bobby and Jackson. Both made 2 statements to Police. Jackson said he saw accused come behind Tony, punched him on face 2 times. Saw Tony’s face bleeding. After punched twice, he kicked him twice, 1st below neck and 2nd kick delivered to right rib area of Tony. Bobby Kwaita made similar observations. Tony hit and kicked by accused.

Kwaita strong kick to Puko. Mr. Tove same story. Tony seem to be sick. Accused ran from place. He was chased by Tony’s friends after the defendant had left scene, friends came to Tony to help. He was seen to be upset. Tony seem to be releasing waster and urine. Taken home, before to clinic. He died at about that time. Dr. OgaOga concluded that the cause of death – most likely internal bleeding as a result of the kick. The accused interviewed under caution 2 times, 28th May 2003 and 30th May 2003. Relies on depositions of R of 1.

On 28 May 2003, he met Tony and asked him about bamboo being used, he admitted doing to Tony and punching with right hand, closed fist. Kicking with leg to ribs. He left from scene. In statement 30 May “In answer 8, he admitted coming behind and punching on chin – hit right side of stomach and chased away. He was asked about his kicking. He said not strong but angry. No internal post mortem. Body examination – based on his history of kick.

I also must take into account the various matters which Ms Emma Garo the lawyer for the convicted person, put to me. They may be shortly summarized as follows:

- A plea of guilty should, on its own, call for a very substantial discount on sentence

- By such a plea the court should find the prisoner exhibits remorse and contrition.

- Period in custody awaiting trial for murder justifies reduction in sentence by the time actually incarcerated.

- First offender

- The youthfulness of the prisoner calls for a particular approach to facilitate re-engagement in his home society at Leona Village and there is nothing to militate against giving him the full benefit of his young age.

To assist with an appropriate range for sentencing in this case, she referred me to a series of reported cases involving manslaughter sentences. From listening to her it would seem a sentence of imprisonment is conceded as appropriate, for Ms. Garo opined the range for offences of this type is from 2 to 6 years imprisonment.

Mr. Cooper for the Crown, accepted that the court must treat the prisoner as a youthful offender (and entitled to an appropriate allowance on sentence for that fact) but that the circumstances of the offence should not be seen as a spur of the moment single punch, rather it was an assault where the prisoner struck the deceased a number of times without provocation and did not desist until he had kicked the deceased on the R rib side; a kick which caused his death. In the village circumstance, a degree of general deterrence is appropriate (for clearly the killing provoked hostility, immediately after, for the Police were straight away called and the formal machinery of the law has taken over). Those aspects raised by Mr. Cooper are clearly matters to be weighed in the scales and the unprovoked nature of the assault and the continuation of the blows and kicks upon what was a smaller, younger boy is a matter of aggravation, apparent on the facts.

I should say, on reading the doctor's post mortem report, from experience in Papua New Guinea, it is not unlikely that the internal bleeding was caused by a ruptured swollen spleen for the deceased boy's history included recurrent bouts of Malaria. The voiding of waster matter in the circumstances would support such a hypothesis but such hypothesis is not crucial to the plea to manslaughter for clearly the internal bleeding wherever it emanated from in the body, was caused by the kick of this prisoner.

The effect of the kick, while unforeseen in this case, was horrendous. Because the exchange of words recounted by the two boys between the prisoner and the deceased boy, words of jest and immaterial to the boys personally, about bamboo cutting, are obscure to me and leave me wondering at the nature of this prisoner, I called for some explanation from the villagers relatives and friends of these two, the deceased and the prisoner so that with such knowledge I am better able to fix a proper penalty.

Statement of village elders able to give evidence of attitude of community to actions of the prisoner.

This enquiry is proper for evidence of customary attitudes to particular behaviour is relevant on sentence and should be taken into account.

The second aspect, arising from the first is the absence of what may be termed, a pre-sentence report setting out relevant particulars of the prisoner to assist the court in its sentencing deliberations. For the circumstances of this prisoner's life are unknown to me. From the address in mitigation I am unable to glean much and I fear, after having warned the prisoner that I wish to hear from him on the question of remorse, his statement may reflect my wish.

Pre-sentence report appropriate in all cases.

A pre-sentence report by prosecution should be drawn up and its tender, after conviction, made a matter of practice in every case. Both, then, of these matters are of utmost importance when sentencing.

CRC 25/88 R -v- Peter Aunipari

CRC 21/90 R -v- John Teo’ohu

CRC 03/97 R -v- Hensley Kwaimani

I deal then, with the summary of Ms. Garo's submissions.

- An appropriate starting point would be 6 years. I say that having regard to the series of cases put to me but I keep in mind that the legislation provides for life imprisonment a maximum penalty, and each prisoner need be sentenced on the peculiar set of facts in each case.

- Remorse and contrition

- The period in custody awaiting trial on the earlier murder charge does not amount to a mitigating factor calling for a discount.

- His youthfulness certainly must be taken into account in his favour for I am told he is 21 years of age, 20 at the time of the killing. He has been in custody 1 year 8 months and that period will also form part of his sentence.

- Matters which militate against full benefit of his youth.

- Customary attitudes and expectations in the village

- Peace and reconciliation ceremony to be organized before Christmas. If funds not sufficient, then grandparents of prisoner to seek indulgence of the Chiefs for further time, to be allowed in the discretion of the parents of the deceased boy.

- Personal circumstances of the prisoner. A villager unmarried with basic school education living in the society into which he was born.

It is not, for reasons which cannot encompass mathematical certainty, appropriate to apportion to each factor in mitigation, a definite period of time, so as to add up, as it were the subtracting factors and come to a resultant. Obviously such a process, where many more mitigating factors are appropriate, may result in the ridiculous resultant of no period of imprisonment. Rather I adopt an overall discount taking these matters into account and the resultant, need be looked at to ensure it is fair in the particular circumstances of this case.

Stand up Calisto Pasi’rivo.

You are sentenced to imprisonment for a period of 3 years. This sentence recognizes to a very large extent the proposed customary settlement which has been agreed. I expect those here today will convey to the Chiefs, the parents of the deceased and the grand parents of this prisoner, that I expect this customary reconciliation to be effected in terms proposed by the Chiefs and agreed to by all.

THE COURT